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05/25/2018

Ilya Somin on Intrinsic and Instrumental Originalism
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Intrinsic vs. Instrumental Justifications for Originalism.  It begins:

Originalists disagree among themselves about what exactly qualifies as the original meaning that judges and other government officials are required to obey. They also differ on the even more fundamental question of why we should obey the original meaning in the first place. Some believe that adhering to original meaning is inherently valuable, independent of consequences. These people can be called "intrinsicist" originalists. Others advocate originalism for instrumental reasons: they believe that following the original meaning leads to good consequences, or at least better ones than living constitutionalism. The difference between intrinsic and instrumental justifications for originalism has important practical implications, as well as theoretical ones.

The post then examines "Problems with Intrinsicist Justifications for Originalism," identifying several intrinsic justifications, including: 

Finally, some originalists argue that we must obey the original meaning because that is the only way to adhere to the "rule of law." The rule of law means different things to different people. But, at least on several standard conceptions of it, the relationship between the rule of law and originalism is merely a contingent one. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning.

For example, the rule of law is often defined in contrast to "the rule of men." Whereas the former is based on general, impersonal rules, the latter is subject to the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. Consider a constitution that includes a provision saying that "the meaning of the law is whatever the president says it is," and historical evidence indicates that this clause was meant to give the president unfettered power to define what counts as lawbreaking and punish offenders as he sees fit. In this scenario, adherents of the rule of law defined as the antithesis of the rule of men, would do well to reject originalism and try to give this clause as narrow an interpretation as they can. They should try to minimize its impact in much the same way as liberal Christians and Jews minimize the significance of biblical passages endorsing slavery and the subordination of women. Similar contingent factors affect the connection between originalism and other standard conceptions of the rule of law.

(As an aside at this point, I'll say that it's not clear to me that support of the rule of law is an intrinsic rather than an instrumental justification.  The reasons one would support the rule of law are, I think, typically instrumental).

The next section of the post is titled "Implications of Adopting an Instrumental Justification for Originalism" and begins:

In my view, like that of McGinnis and Rappaport, originalism can only be effectively defended on instrumental grounds. I think the original meaning of the US Constitution protects liberty and several other important values better than any currently feasible alternative is likely to do. And, like them, I believe (at least tentatively) that constitutional rules adopted through supermajority processes are likely to be, on average, better (on consequentialist grounds) than those developed by judges or conventional political majorities.

I will not try to defend these conclusions in any detail here (though I have in part done so previously). I will instead note some important implications of instrumental defenses of originalism, which qualify their scope.

And in conclusion:

In sum, there is good reason to reject intrinsicist justifications of originalism in favor of instrumental ones. But the latter have a number of potentially uncomfortable implications. Of course, the same thing is true for any plausible version of living constitutionalism. No approach to constitutional theory can sidestep difficult questions about the reasons why we should adopt it in the first place.

This is an important and thought-provoking post (inspired by Andrew Coan's important and thought-provoking article noted here).